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Holder Tightens Rules on Getting Reporters’ Data

Attorney General Eric H. Holder Jr. has made it harder for prosecutors to get around a legal hurdle to secret searches.Credit
Gary Cameron/Reuters

WASHINGTON — Attorney General Eric H. Holder Jr., who has been criticized for the Justice Department’s aggressive tactics in secretly obtaining phone logs and e-mails of reporters as part of leak investigations, announced new guidelines on Friday that would significantly narrow the circumstances under which journalists’ records could be obtained.

A White House spokesman said that President Obama supported the Justice Department’s changes as well as its call, at the end of a report on the revisions, to more often find ways other than criminal investigations to deal with leaks of classified information. Under Mr. Obama, prosecutors have filed charges in seven leak-related cases to date, compared with three under all previous presidents combined.

“There are circumstances in which leaks are better addressed through administrative means, such as withdrawal of security clearances or imposition of other sanctions,” said Matt Lehrich, the White House spokesman. “The president agrees with the Justice Department’s recommendation, and has directed his team to explore how the administration could more effectively use alternatives in appropriate cases.”

In a six-page report, Mr. Holder outlined changes to the Justice Department’s investigative guidelines that would prevent the Federal Bureau of Investigation from portraying a reporter as a co-conspirator in a criminal leak as a way to get around a legal bar on secret search warrants for reporting materials.

The revisions would also make it harder — though not impossible — for prosecutors to obtain a journalist’s records from telephone companies without advance notice. The notifications would give the news organizations a chance to contest the request in court.

“The Department of Justice is firmly committed to ensuring our nation’s security, and protecting the American people, while at the same time safeguarding the freedom of the press,” Mr. Holder said. “These revised guidelines will help ensure the proper balance is struck when pursuing investigations into unauthorized disclosures.”

Investigators’ targeting of the communications records of Associated Press and Fox News reporters in separate investigations came to light in May, setting off a furor among journalists and in Congress about the administration’s increasingly aggressive record on leak inquiries.

Two months ago, Mr. Obama gave Mr. Holder a July 12 deadline to review the rules and make recommendations. Mr. Holder held a series of meetings with newsroom leaders and lawyers for media companies, along with lawmakers and First Amendment scholars, in May and June, and briefed Mr. Obama about the changes at the White House on Friday morning.

Several of them directly addressed controversies from the earlier disclosures. For example, a 2010 affidavit that came to light in May sought a warrant for e-mails from the Google account of James Rosen of Fox News in which he corresponded with a State Department analyst who was suspected of leaking classified information.

Congress has generally forbidden search warrants for journalists’ work materials, but the statute makes an exception if the reporter is suspected of committing a crime. An F.B.I. agent wrote that Mr. Rosen qualified for that exception because he had violated the Espionage Act by seeking government secrets to report.

No American journalist has ever been prosecuted for gathering and publishing classified information, so the language raised the prospect that the Obama administration was taking its leak crackdown to a new level. The administration insisted that it never intended to charge Mr. Rosen and that it had portrayed him as a criminal merely to get around the prohibition on accessing his e-mails.

The revision to the guidelines would bar such a tactic by saying that the “suspect exception” may only be invoked “when the member of the news media is the focus of the criminal investigation for conduct going beyond ordinary news-gathering activities.”

Search warrants invoking the exception, the revision adds, will not be allowed “if the sole purpose is the investigation of a person other than a member of the news media.”

Also, the new guidelines will require the attorney general to sign off on invoking the exception. Previously, a deputy assistant attorney general could do so.

The Justice Department also disclosed in May that it had obtained calling records for more than 20 telephone lines of A.P. offices and journalists in connection with an investigation into a leak about a foiled bomb plot in Yemen last year. The subpoena was controversial because the department gave no advance notice, so The A.P. was unable to negotiate the scope of the subpoena or challenge it in court.

The revisions to the guidelines will make it harder — though not impossible — for prosecutors to take such a step in the future.

Prosecutors, for example, have interpreted the previous rules as carrying a presumption that investigators will withhold advance notice to reporters, unless an assistant attorney general decides it would not be harmful to do so.

The revised guidelines reverse that presumption and raise the decision-making level to the attorney general.

Moreover, the new guidelines will make clear that the possibility that negotiations and judicial review “may delay the investigation will not, on its own, be considered a compelling reason” to avoid advance notice.

Finally, even if the attorney general finds that there is a compelling reason to delay notice, it can be for a maximum of 90 days. Under previous rules, the notice could be put off indefinitely.

Another set of changes would update the guidelines so that the same protections of phone calls will also cover all “communications records” and “business records” that are stored and maintained by third parties. In 2011, it came to light that investigators had secretly obtained credit card, bank and airline travel records of a New York Times reporter, James Risen, in another leak investigation.

The guidelines cover grand jury subpoenas used in criminal investigations. There is no change to how the F.B.I. may obtain reporters’ calling records via “national security letters,” which are exempt from the regular guidelines. A Justice spokesman said the device is “subject to an extensive oversight regime.”

The guidelines will say that the department’s top press and civil liberties officials must review and make a recommendation about requests for reporters’ records, and they will direct the Justice Department to start issuing an annual tally disclosing how many times it has made an effort to obtain them, the report said.

Mr. Holder reiterated the administration’s support to revive efforts to enact a federal media shield law that would place the decision about delaying notice of any subpoena for reporters’ phone records in the hands of a judge rather than the attorney general. A bill to do so had faltered in 2010.

“While these reforms will make a meaningful difference, there are additional protections that only Congress can provide,” Mr. Holder said. “For that reason, we continue to support the passage of media shield legislation.”

A version of this article appears in print on July 13, 2013, on page A1 of the New York edition with the headline: Holder Tightens Rules on Getting Reporters’ Data. Order Reprints|Today's Paper|Subscribe